Zobe, L. L. C. v. United Northern Bancshares, Ltd.

—Judgment, Supreme Court, New York County (Franklin Weissberg, J.), entered November 21, 1997, after a nonjury trial, in favor of plaintiff landlord and against defendant tenant in the principal amount of $13,893.26, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about November 7, 1997, which, insofar as appealed from, denied plaintiff’s motion to set aside the judgment, unanimously dismissed, without costs, as subsumed within the appeal from the judgment.

Upon expiration of the lease, the parties entered into a month to month tenancy for a rent that, absent agreement otherwise, was in the amount of any payments made by defendant and accepted by plaintiff (Real Property Law § 232-c; see, *238Matter of Joyous Holdings v Volkswagen of Oneonta, 128 AD2d 1002, 1006). Although plaintiff could have reserved its right to seek the market value of the premises by endorsing the tenant’s checks under protest or without prejudice, as it did in some instances prior to August 20, 1996, plaintiff thereafter abandoned such protest by accepting at least five more rent payments without protest. Concur — Milonas, J. P., Ellerin, Nardelli, Rubin and Andrias, JJ.